Dorman v. State Bd. of Registration

• Decision Date: 22 January 2002
• Docket Number: No. WD 58840.,WD 58840.
• Citation: 62 S.W.3d 446
• Parties: Lawrence E. DORMAN, D.O., Appellant, v. STATE BOARD OF REGISTRATION FOR THE HEALING ARTS, Respondent.
• Court: Missouri Court of Appeals

62 S.W.3d 446

Lawrence E. DORMAN, D.O., Appellant, v. STATE BOARD OF REGISTRATION FOR THE HEALING ARTS, Respondent.

No. WD 58840.

Missouri Court of Appeals, Western District.

October 9, 2001.

Motion for Rehearing and/or Transfer Denied December 4, 2001.

Application for Transfer Denied January 22, 2002.

COPYRIGHT MATERIAL OMITTED

Dennis J. Owens, Kansas City, for appellant.

Glenn E. Bradford, Kansas City, for respondent.

Before SPINDEN, P.J., BRECKENRIDGE and HOWARD, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 4, 2001.

PATRICIA BRECKENRIDGE, Judge.

The State Board of Registration for the Healing Arts (Board) revoked the medical license of Lawrence E. Dorman, D.O., after the Administrative Hearing Commission (Commission) found that Dr. Dorman's medical license was subject to disciplinary action for violation of §§ 334.100.2(4) and (5), and 334.100.2(4)(e), RSMo 2000.¹ The circuit court subsequently denied Dr. Dorman's petition for review, and affirmed the decisions of the Commission and the Board. Dr. Dorman appeals, claiming that the Commission's decision is not supported by substantial evidence because the Commission erroneously relied on hearsay evidence, and the decision involves an abuse of discretion because it is against the overwhelming weight of the evidence. Because this court finds that the Commission properly considered the hearsay evidence in making its decision, and the decision is not against the weight of the evidence, the judgment of the circuit court affirming the decisions of the Commission and the Board is affirmed.

Factual and Procedural Background

In reviewing the sufficiency of the evidence to support the Commission's decision, this court views the evidence and any inferences therefrom in the light most favorable to the Commission's decision. Larocca v. State Bd. of Registration for Healing Arts, 897 S.W.2d 37, 39 (Mo.App. 1995).² The Commission's determination that Dr. Dorman's license is subject to discipline is based upon his treatment of one of his patients, E.F.S. In December 1988, E.F.S., who was 54 years old, sought treatment from Dr. Dorman. At that time, Dr. Dorman was a licensed osteopathic physician and surgeon who practiced primarily in the area of family medicine.

At E.F.S.'s first appointment with Dr. Dorman on December 9th, he complained of a sharp pain in his back that was radiating to his hands. E.F.S. told Dr. Dorman that he had been helping to remodel his church. Dr. Dorman ordered a blood test, but he did not perform a complete physical examination of E.F.S. The blood test results showed that E.F.S. had a relatively high cholesterol level. At that time, Dr. Dorman was also aware that E.F.S.'s father died of a heart attack when he was in his fifties, and that E.F.S. had a history of smoking. Dr. Dorman did not perform any tests to determine if E.F.S.'s problems were heart-related. Dr. Dorman diagnosed E.F.S. with a musculoskeletal problem.

Between December 13th and 18th, E.F.S. performed several physical tasks associated with the church remodeling, including lifting boxes, a heavy roll of carpeting, several boards, and piano dollies. On December 21st, E.F.S. woke up at 6:00 A.M. with a burning sensation in his chest, and a burning and stinging sensation in his back and arms. His chest was making a gurgling sound that his wife, B.R.S., was able to hear across the room. E.F.S. was in so much pain that he was crying.

E.F.S. and B.R.S. went to Dr. Dorman's office between 8:00 and 8:30 A.M. on December 21st and told Dr. Dorman about the symptoms E.F.S. had been having. Dr. Dorman checked E.F.S.'s blood pressure, which was significantly low. Dr. Dorman told B.R.S. that the low blood pressure was caused by the fact that E.F.S. was in a lot of pain, and that they should not worry about it. Dr. Dorman also performed an EKG on E.F.S., and told E.F.S. that the EKG "didn't look too bad." Dr. Dorman told E.F.S. and B.R.S. that the EKG showed that E.F.S. might have an aneurysm of the aorta, and if that was the case, there was no cure for it. Dr. Dorman told E.F.S. and B.R.S. that they needed to pray about it, because either the aneurysm would go away, or E.F.S. would die. Dr. Dorman gave E.F.S. a shot for the pain, put a hot pack on E.F.S.'s back, and gave him some samples of Isoptin. Isoptin is a calcium channel-blocking agent that is useful in preventing anginal episodes. The samples of Isoptin Dr. Dorman gave E.F.S., however, were past their expiration date.

E.F.S.'s condition did not improve after he left Dr. Dorman's office and, in fact, E.F.S. vomited repeatedly over the next 24 hours. E.F.S. made an appointment with his chiropractor, Dr. Wayne Bateman, for the afternoon of December 21st. Dr. Bateman performed an adjustment on E.F.S., and took x-rays of E.F.S.'s chest. Dr. Bateman told E.F.S. he did not like the way E.F.S.'s lungs looked on the x-ray, so Dr. Bateman took them to Dr. Ray Conley, a chiropractic radiologist, for evaluation. Dr. Conley noticed, among other things, that E.F.S.'s aortic knob was prominent, and he had aortic uncoiling. While these conditions can happen as a result of the aging process, they can also happen because of high blood pressure, atherosclerotic disease, and other changes in the vascular system. Dr. Conley believed that the conditions were unusual for a person of E.F.S.'s age.

The next day, when E.F.S. went back to Dr. Bateman for another adjustment, Dr. Bateman told E.F.S. that he and Dr. Conley recommended that E.F.S. obtain better chest x-rays. Dr. Bateman made an appointment for E.F.S to obtain more x-rays from Dr. Conley on December 23rd. E.F.S. was unable to keep that appointment, however, because he was nauseous.

Instead, E.F.S. went to Dr. Dorman's office on December 23rd and had Dr. Dorman evaluate the x-rays Dr. Bateman had taken. Dr. Dorman told E.F.S. and B.R.S. that the x-rays looked "like a lot to do about nothing." Dr. Dorman told them that E.F.S. did not need to obtain better chest x-rays. When B.R.S. told Dr. Dorman than E.F.S. had not eaten anything since December 20th, Dr. Dorman told B.R.S. not to worry about it, and that E.F.S. would eat when he wanted to.

Dr. Dorman's nurse then took E.F.S. into another room and began giving him intravenous hydrogen peroxide. While E.F.S. was receiving the hydrogen peroxide, B.R.S. asked Dr. Dorman about E.F.S. possibly having heart trouble. Dr. Dorman again told her that E.F.S. might have an aneurysm in his aorta. B.R.S. then asked Dr. Dorman what type of solution he was giving E.F.S. Dr. Dorman told B.R.S. that he was administering intravenous hydrogen peroxide, but that he was putting on his chart that he was administering intravenous vitamin C. Dr. Dorman explained that the reason he was writing vitamin C on the chart was because he had signed a statement with the Board in Jefferson City in which he agreed not to treat patients with intravenous hydrogen peroxide anymore. Dr. Dorman said that the Board was ill-informed, however, and that intravenous hydrogen peroxide was a wonderful treatment. Dr. Dorman told B.R.S. that he had administered intravenous hydrogen peroxide to a woman with shingles ten days prior, and she had improved rapidly. Dr. Dorman told B.R.S. that intravenous hydrogen peroxide was the best treatment for E.F.S. B.R.S. and E.F.S. decided to proceed with the intravenous hydrogen peroxide treatment because Dr. Dorman said it would be all right.

By the next day, December 24th, E.F.S.'s condition still had not improved. E.F.S. called Dr. Dorman at his home, and then met him at his office. Dr. Dorman gave E.F.S. a shot to help his lung capacity because E.F.S. was having trouble breathing. Dr. Dorman gave him more Isoptin, and also gave him three other medications, one of which, Theo Dur, is contraindicated in acute myocardial infarction, or heart attack, cases. Dr. Dorman scheduled a follow-up appointment for E.F.S. to obtain another intravenous hydrogen peroxide treatment on December 27th.

E.F.S. went home after his appointment on December 24th and took the medication Dr. Dorman had prescribed. All of the medication made E.F.S.'s heart race rapidly, and E.F.S. became nauseous. Dr. Dorman called that evening and asked B.R.S. if she had given E.F.S. the prescribed medication. When B.R.S. told him why she had not, Dr. Dorman told B.R.S. to give E.F.S. as much of the medicine as possible. B.R.S. gave E.F.S. only half of the dosage. E.F.S. continued to feel worse after he took the medication.

Dr. Dorman called E.F.S.'s house two days later on December 26th. Dr. Dorman again asked B.R.S. if she had given E.F.S. the medicines he had prescribed, and B.R.S. again explained why she had not. E.F.S. complained that the medicine made him feel like he was going to die because he could not breathe, and it made him nauseous.

From December 26th to December 28th, E.F.S.'s condition appeared to be improving. On December 29th, however, E.F.S.'s condition worsened. B.R.S. contacted Dr. Gerald Lee, a physician she knew from church. Dr. Lee specializes in cardiovascular disease and internal medicine. B.R.S. told Dr. Lee that E.F.S. was having symptoms of chest pain and an inability to lie down because of shortness of breath. Dr. Lee told B.R.S. to take E.F.S. immediately to Dr. Said Mahmoud's office.

Dr. Mahmoud, who is a pulmonary specialist, performed an EKG on E .F.S., and showed the results to Dr. Jay Jackson, a cardiologist. Drs. Mahmoud and Jackson determined that E.F.S. had had a heart attack. Dr. Jackson opined that the heart attack had occurred anywhere from three to five days before December 29th. Both doctors told E.F.S. that he needed to be hospitalized immediately. According to Dr. Mahmoud, E.F.S. "did not have a clue" as to what was wrong with him, and was shocked to learn that he had had a heart attack. E.F.S. was taken by ambulance to the intensive care unit of Trinity Lutheran Hospital.

At the hospital, E.F.S. was...